LEGAL ISSUES
On a related issue, because lower courts disagreed over whether par- ents may recover fees for expert witnesses, the Supreme Court, in a suit from New York, intervened. In Arlington Central School District v. Murphy (2006), the Court refused to read the IDEA as permitting paren- tal reimbursement for the services of expert witnesses or consultants who assisted in their disagreements with their boards, even if they prevail. The Court was unwilling to rewrite the IDEA even though its order left parents without recourse because the statute was silent on the matter and Congress has not acted to modify the law, despite requests to do so. In fact, the House of Representatives (2009, 2011) twice rejected legisla- tion designed to permit parents who prevail in litigation under the IDEA to recover expert witness fees from their boards.
Tuition Reimbursement
Because the IDEA allows parents who disagree with the placements of their children to enroll them in pri- vate schools and attempt to recover the costs of tuition, it should not be surprising that litigation has arisen over this potentially costly issue.
It should not be surprising that
litigation has arisen over this potentially costly issue
In School Committee of the
Town of Burlington v. Department of Education, Commonwealth of Massachusetts (1985), the Supreme Court wrote that parents are entitled to tuition reimbursement if they can demonstrate that officials failed to offer FAPEs and their chosen placements are appropriate. The justices thought that awarding reim- bursement requires boards to pay
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retroactively for costs they should have covered from the beginning. In Florence County School Dis- trict Four v. Carter (1993), the Supreme Court found that parents are entitled to reimbursements for tuition even if their chosen place- ments are not in state-approved facilities as long as their children are in otherwise appropriate settings. Subsequently, in a nonprecedential plurality—meaning that a majority of the Court did not join the opin- ion—in Board of Education of the City School District of the City of New York v. Tom F. ex rel. Gilbert F. (2007), the justices interpreted the IDEA as not precluding parents from being reimbursed for private place- ments even if they did not first enroll their children in public schools. Litigation continued over whether parents could unilaterally place their children in private schools and seek reimbursement. The Ninth Circuit decided that the parents of a student in Oregon who had not yet received IDEA services were eligible for tuition reimbursement even though they placed him in a private school unilaterally. On appeal in Forest Grove School District v. T.A. (2009), the Supreme Court agreed that in extreme instances parents could be entitled to tuition reimbursement for placing their son in the private setting although he had not first received special education in a pub- lic school.
On remand, after the federal trial court in Oregon denied the plain- tiffs’ request for reimbursement, the Ninth Circuit affirmed that the equities did not require the board to pay the tuition costs the parents incurred at the private school (Forest Grove 2011).
Disciplining Students with Disabilities
At issue in Honig v. Doe (1988) were the limits that educators, in this case in California, could impose when seeking to exclude two stu- dents with disabilities from school
for disciplinary infractions. In the first of three questions before it, the Supreme Court affirmed that the matter was moot as to one of the students who was expelled because he was already over the age of 21. Second, in refusing to write a dan- gerousness exception into the law, the Supreme Court affirmed that the IDEA’s stay-put provisions prohibit educators from unilaterally exclud- ing students with disabilities from school for dangerous or disruptive actions that are manifestations of their disabilities while review pro- ceedings are proceeding. The justices added officials could impose non- placement-changing procedures, such as “the use of study carrels, timeouts, detention, or restrictions of privileges” (Honig 1988, 325) and temporary suspensions for up to 10 school days for students who posed immediate threats to safety. The Court conceded that if educa- tors and parents agreed, students could be put in interim placements as proceedings progressed, specify- ing that if this approach failed, offi- cials could seek injunctive relief to remove disruptive students. Third, an equally divided Supreme Court affirmed that state-level offi- cials can be required to provide services directly to students with disabilities when local boards fail to do so. Congress has since revised the IDEA codifying some elements of Honig to provide guidance for school officials on the contentious, and complicated, issue of disciplin- ing students with disabilities.
Delivery of Services in Faith-Based Schools
In Zobrest v. Catalina Foothills School District (1993), the Supreme Court reasoned that the establish- ment clause of the First Amendment did not prevent a public school board in Arizona from providing the on-site delivery of the services of a sign-language interpreter for a student who attended a Catholic high school. The justices noted that
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